Short note on the Vishaka vs. State of Rajasthan.
Facts of the case
At the outset, it is necessary to put forth the facts of the case in detail to render a better
understanding. Firstly, there was an immediate cause responsible for initiating this fight for
gender justice which was the case of the alleged brutal gang rape of a woman in a village in the
State of Rajasthan. Bhanwari Devi, a social worker was gang-raped for doing the noble act of
preventing child marriage. Unfortunately, this criminal case pursuant to the insufficient evidence
proving the crime was dismissed [1]. However, this incident gained momentum among various
social activists and NGOs, enforcing the necessity for specific legislation for sexual harassment
of women at the workplace in the light of Gender Equality. Subsequently, this writ petition was
filed by certain social activists and NGOs under Article 32 on the ground of violation of Articles
14, 15 and 21 of the Constitution.
Issues
Before delving into the analysis, let’s have a look at the issues raised:
•Whether sexual harassment in the workplace is a violation of Fundamental Rights under
Articles 14, 15 and 21 of the Constitution?
•Whether International Convention can be applied in cases of the absence of appropriate
domestic laws?
•Whether there is a need for mandatory guidelines to be laid in the light of Sexual harassment at
the workplace?
Key contentions
The Council on behalf of the Petitioners contended that the sexual harassment undergone by
women at the workplace is a violation of Articles 14, 15, 19(1)(g) and 21 of the Constitution.
Adding on, the counsel pointed out the need for the legislation by highlighting the lacuna of
appropriate provision of law in the view of a safe working environment for women. The counsel
on behalf of the respondent, indeed, extended considerable assistance required to aid the Court
in dealing with the discussed social evil. Additionally, Ms. Meenakshi Arora and Ms. Naina
Kapur also lent a helping hand to the Court. Further, Shri.Fali S. Nariman being appointed as
Amicus Curiae as well assisted the Court. Therefore, it goes without saying that the judicial
assistance provided, portrays the willingness to work together, towards a better upshot on
taking the interests of the people into account. [2]
Judicial reasoning
Firstly, the court ruled that such an incident is a crystal clear violation of Article 14, 15, 19(1)(g)
of the Constitution. Furthermore, the Court indicated few other provisions relevant, in particular,
Article 42 (Provision for Just and humane conditions of work and maternity relief) and 51A
(Fundamental duties of the citizen). [3]
Secondly, the Court dealt with the application of international conventions in the absence of
required Domestic Law. The court highlighted that a relevant International Convention which is
consistent with the fundamental rights as well in harmony within its scope can be applied for the
promotion of the Object of the Constitutional guarantee as implied under the Article 51 (c) and
Article 253 (Power of the Parliament to enact laws for the implementation of the International
Conventions and Norms) read along with the Entry 14 under the Union List in the 7th Schedule
of the Indian Constitution. In addition to this, the court also emphasized Article 73 (Extent of
Executive power of the Union).
Thirdly, the court acknowledged the need for guidelines to render Gender equality and
emphasized the significance played by the International Convention and Norms as the very
nature of protection of sexual harassment and right to work with dignity being universal.
Judgment
On considering the absence of domestic law regarding gender equality and protection from
sexual harassment at the workplace, the Court formulated the guidelines and norms to be
observed at all the workplaces until the enactment of legislation under Article 32 for the
enforcement of the Fundamental Rights of the Constitution. Adding on, the court declared this
as a law under the ambit of Article 141 of the Constitution.
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